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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: 2019-35722
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
______________________ 26 November 2025
In the matter between:
B[…], S[…] L[…] (FORMERLY J[…]) Applicant / Defendant
and
B[…], R[…] L[…] Respondent / Plaintiff
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Mdalana-Mayisela J
Introduction
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[1] This matter concerns an application under Rule 35(3) of the Uniform Rules
of Court, in which the applicant seeks an order compelling the r espondent to
provide a proper and compliant response to her notice for further discovery. The
application is opposed. Also before me is the r espondent's application for
condonation for the late filing of his answering affidavit.
Background
[2] The parties have been engaged in protracted divorce proceedings since 2019.
They were married in community of property on 18 March 1995. The a pplicant
has filed a counterclaim seeking, inter alia , maintenance of R6,000 per month.
The respondent opposes this claim, pleading that he is " a retired person with
limited means" who lacks the financial ability to pay maintenance.
[3] The discovery process has been lengthy. On 18 November 2024, the
applicant served a comprehensive notice under Rule 35(3), seeking numerous
categories of financial documents to determine the true extent of the joint estate
and the r espondent's financial position. The respondent delivered a responding
affidavit on 29 November 2024, which the a pplicant found deficient. After a
detailed letter of complaint dated 5 December 2024 went unanswered, the
present application was launched.
The Condonation Application
[4] The respondent's answering affidavit was filed approximately two weeks
late. The explanation provided involves an administrative oversight within the
respondent's attorneys' firm, where a dictated affidavit was overlooked by a
candidate attorney.
[5] While the explanation is not particularly compelling, I am mindful that
courts generally prefer to decide matters on their merits. The delay was not
excessive, and the applicant, while not consenting, will abide by the c ourt's
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decision. In the interests of justice, the late filing of the r espondent's answering
affidavit is granted.
The issue for determination on the merits
[6] The central issue for determination is whether the r espondent's affidavit of
29 November 2024 constitutes adequate compliance with Rule 35(3),
particularly in light of his financial disclosure form filed on 15 October 2024.
The Legal Framework
[7] Rule 35(3) provides that if a party states under oath that requested
documents are not in their possession, they " shall state their whereabouts, if
known." This wording is peremptory.
[8] The legal principles are well-established. In Swissborough Diamond Mines v
Government of the Republic of South Africa, 1 the court emphasized the
importance of proper discovery. More directly, in African Contractors Finance
Corporation (Pty) Ltd v LW Home Builders and Another ,
2 the court held
unequivocally that it is insufficient for a party to merely state that documents
are not in their possession. The Rule obliges them to state the whereabouts of
the documents if known, or to affirm that they are unaware of their
whereabouts.
Analysis of the Respondent's Compliance
[9] The respondent's initial Rule 35(3) response was fundamentally deficient.
For numerous categories of documents, including those relating to business
interests, loans, and financial transaction s, the respondent provided uniform,
1 1999 (2) SA 279 (T) at 321.
2 2005] ZAGPHC 113 para 4.
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unparticularised denials : "I am not in possession nor have ever had the
documentation..."
[10] This response failed to comply with the peremptory requirement of Rule
35(3) to state the whereabouts of documents not in his possession. This failure
alone would justify granting the application.
[11] However, the respondent's financial disclosure of 15 October 2024 reveals
that the deficiencies in his Rule 35(3) response were not merely procedural but
substantive. The disclosure contains material discrepancies and evidence of
transactions that directly contradict his blanket denials, as shown below:
[11.1] Material Misstatement of Assets
The Respondent declared his bank account value totalling R4,672.00, while his
attached bank statement shows a balance of R61,317.25, a discrepancy of
approximately R56,645.25 that remains completely unexplained.
[11.2] Unexplained Substantial Transactions
The bank statements reveal multiple substantial transactions that directly
contradict the respondent's denials in his Rule 35(3) response:
- A transfer of R40,000 to "M Tennant"
- A payment of R17,500 marked "Loan Repay"
- Multiple "Send Money" transactions to various recipients
- Continued payments to "Zebrand Couriers" and "CC"
[12] These transactions provide compelling evidence that documents relating to
loans, business interests, and financial relationships likely exist, contrary to the
respondent's denials. His failure to explain these transactions in his answering
affidavit further undermines his credibility.
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[13] The respondent's argument that the Rule 35(3) notice is " overly broad,
burdensome, and largely seeks documentation not relevant " is unsustainable in
the context of a divorce in a community of property where his financial
disclosures have proven unreliable, and his pleaded poverty is directly
contested.
Conclusion
[14] The applicant has established not only procedural non- compliance with
Rule 35(3), but has also demonstrated, through the respondent's own
documents, that comprehensive discovery is essential to ascertain the true extent
of the joint estate and properly adjudicate the maintenance claim.
[15] The respondent's conduct, providing a sketchy Rule 35(3) response and a
financial disclosure containing material discrepancies, demonstrates a pattern of
obfuscation that prejudices the applicant's ability to properly present her case.
ORDER
[16] In the result, the following order is made:
1. The respondent's application for condonation for the late filing of his
answering affidavit is granted.
2. The respondent is ordered to serve on the a pplicant a proper and compliant
response to the applicant's Notice in terms of Rule 35(3), dated 18 November
2024, within ten (10) days of the date of service of this order.
3. In his said response, the respondent shall, for any document which he avers is
not in his possession, state under oath the whereabouts of such document, if
known, or state that he is unaware of its whereabouts, as required by Rule 35(3).
4. The respondent is ordered to make the documents referred to in his proper
and compliant response to the applicant’s Rule 35(3) notice available for
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inspection within ten (10) days of the date of service of this order on his
attorneys of record.
5. The respondent is to pay the costs of this application on the scale B.
______________________
MMP Mdalana-Mayisela
Judge of the High Court
Gauteng Division,
Johannesburg
Digitally delivered by uploading to Caselines and emailing to the parties.
Date of Hearing: 12 August 2025
Date of delivery: 26 November 2025
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Appearances
For the Applicant: Adv. B Delport
Instructed by: Geniv Wulz Attorneys Inc.
For the Respondent: Adv. CJ Smith
Instructed by: Simpson Incorporated